Kirkova v Stojanov

FEDERAL CIRCUIT COURT OF AUSTRALIA

Kirkova v Stojanov [2021] FCCA 398

File number(s):	SYG 1274 of 2020
Judgment of:	JUDGE OBRADOVIC
Date of judgment:	5 March 2021
Catchwords:	BANKRUPTCY – Application for sequestration order – whether preconditions for making sequestration order satisfied – whether respondent left Australia with intent to defeat or delay his creditors - sequestration order made.
Legislation:	Bankruptcy Act 1966 (Cth), ss 40, 42, 43, 52
Cases cited:	Barton v Deputy Federal Commissioner of Taxation [1974] HCA 43 Burrell v Reavill Farm Pty Ltd & Ors [2014] FCCA 1449 The Owners Strata Plan No. 6766 v Nomchong (No.2) [2018] FCCA 3450 Deputy Commissioner of Taxation v Cranswick (No.2) [2010] FCA 1155 Deputy Commissioner of Taxation v Wachjo [2005] FCA 561 Edge Technology Pty Ltd v Wang [2000] FCA 1586 Ex parte Goater; Re Finney (1874) 30 LT 620 Re Andrews, Ex Parte Manning (1966) 8 FLR 56 Re Thai; Ex parte Commissioner of Taxation [1994] FCA 1071
Number of paragraphs:	35
Date of last submission/s:	1 March 2021
Date of hearing:	1 March 2021
Place:	Parramatta
Solicitors for the Applicant	Colin Daley Quinn Solicitors
Counsel for the Applicant	Mr Woods
Appearing for the Respondent	No appearance

ORDERS

SYG 1274 of 2020

BETWEEN:

ANASTAZIA KIRKOVA

Applicant

AND:

MARTIN STOJANOV

Respondent

ORDER MADE BY:	JUDGE OBRADOVIC
DATE OF ORDER:	5 MARCH 2021

THE COURT ORDERS THAT:

1.The estate of Martin Stojanov is sequestered under the Bankruptcy Act 1966 (Cth).

2.The Applicant creditor’s costs fixed in the amount of $14,312.00 be paid from the estate of the Respondent debtor in accordance with the Bankruptcy Act 1966 (Cth).

NOTATION:

A.The Court notes that the date of the act of bankruptcy is 3 February 2020.

REASONS FOR JUDGMENT

JUDGE OBRADOVIC

1. By Creditor’s Petition filed on 27 May 2020, as amended on 22 October 2020, pursuant to s.42 of the Bankruptcy Act 1966 (Cth) (“the Act”) the applicant makes an application for a sequestration order against the respondent. The applicant has filed an affidavit verifying the petition.

2. The applicant asserts that the respondent committed an act of bankruptcy as provided for in s.40(1)(c)(i) and (ii) of the Act, namely, that the respondent, with intent to defeat or delay his creditors departed or remained outside of Australia and/or departed from his usual dwelling house or usual place of business.

3. The respondent was served personally with the Creditor’s Petition on 20 August 2020.

4. On 3 September 2020, the Court made orders listing the petition for hearing at 10.15am on 23 October 2020.

5. On 14 October 2020, the respondent filed a Notice of Appearance, Notice of Grounds of Opposition and Affidavit. The respondent opposes the sequestration order on the following two basis:

   a.That he has not departed or remained outside of Australia or departed his dwelling or usual place of business or otherwise absented himself, with the intent to defeat or delay creditors, but rather that his departure from Australia was done in compliance with his visa conditions; and

   b.As he left Australia on 30 June…